5 INTERNATIONAL COURT OF JUSTICE YEAR June June General List No. 80 CASE CONCERNING CERTAIN PHOSPHATE LANDS IN NAURU (NAURU v. AUSTRALIA) PRELIMINARY OBJECTIONS Jurisdiction of the Court and admissibility. Declaration of acceptance of compulsoiy jurisdiction excluding "any dispute in regard to which the Parties thereto have agreed or shall agree to have recourse to some other method ofpeaceful settlement " - Application to States alone of declarations under Article 36, paragraph 2, of Statute - Respondent's declaration and exclusion for which itprovides. Alleged waiver of claims prior to independence - (1) Agreement between the local authorities of a trust territory and the Administering Authority - Absence of explicit clause operating as waiver - Absence of implicit waiver - (2) Discussions in the United Nations - Significance of statements by representative of the local authorities. Alleged breaches of a trusteeship agreement - "Definitive legal effect" of General Assembly resolutions terminating trusteeship agreements - Particular circumstances in which the Trusteeship over Nauru was terminated - Question of discharge said to have been given by resolution. Need to determine in each case effects of passage of time with regard to the admissibility of an application. Applicant's alleged inconsistency and lack of good faith - Absence of an abuse of process. Mandate conferred on "His Britannic Majesty "as Sovereign of the United Kingdom, Australia and New Zealand - Trusteeship granted to Australia, New Zealand and the United Kingdom 'fjointly" designated as Administering Authority - Absence of international legal personality of the Adrninistering Authority - (1) Claims based on conduct of Respondent as one of the three States making up the Administering Authority - Suing of Respondent alone a question independent of that ofpossible Joint and several" liability - Possibility of the Court's considering a clairn of alleged breach by Respondent of its obligations under Trusteeship Agreement - (2) Fundamentalprinciple of consent of States to Court's jurisdiction - Possibility of the Court's taking a decision without ruling on legalsituation

7 of non-party States - Situation different from that with which the Court had to deal in the Monetary Gold case. Article 40, paragraph 1, of the Statute of the Court and Article 38, paragraph 2, of the Rules of Court - Claim new in both fonn and substance whose examination by the Court would transfonn the subject of the dispute originally submitted to it. JUDGMENT Present: President Sir Robert JENNINGS; Vice-President ODA; Judges LACHS, AGO, SCHWEBEL, BEDJAOUI, NI, EVENSEN, TARASSOV, GUILLAUME, SHAHABUDDEEN, AGUILAR MAWDSLEY, RANJEVA; Registrar VALENCIA- OSPINA. In the case concerning certain phosphate lands in Nauru, between the Republic of Nauru, represented by Mr. V. S. Mani, Professor of International Law, Jawaharlal Nehru University, New Delhi; former Chief Secretary and Secretary to Cabinet, Republic of Nauru, Mr. Leo D. Keke, Presidential Counsel of the Republic of Nauru; former Minister for Justice of the Republic of Nauru; and Member of the Bar of the Republic of Nauru and of the Australian Bar, as Co-Agents, Counsel and Advocates; H.E. Mr. Hammer DeRoburt, G.C.M.G., O.B.E., M.P., Head Chief and Chairman of the Nauru Local Government Council; former President and Chairman of Cabinet and former Minister for External and Interna1 Affairs and the Phosphate Industry, Republic of Nauru, Mr. Ian Brownlie, Q.C., Member of the English Bar; Chichele Professor of Public International Law, University of Oxford; Fellow of Al1 Souls College, Oxford, Mr. Barry Connell, Associate Professor of Law, Monash University, Melbourne; Member of the Australian Bar; former Chief Secretary and Secretary to Cabinet, Republic of Nauru, Mr. James Crawford, Challis Professor of International Law and Dean of the Faculty of Law, University of Sydney; Member of the Australian Bar, as Counsel and Advocates, and the Commonwealth of Australia,

9 represented by Mr. Gavan Griffith, Q.C., Solicitor-General of Australia, as Agent and Counsel; H.E. Mr. Warwick Weemaes, Ambassador of Australia to the Netherlands, as Co-Agent; Mr. Henry Burmester, Principal Adviser in International Law, Australian Attorney-General's Department, as Co-Agent and Counsel; Mr. Eduardo Jiménez de Aréchaga, Professor of International Law, Montevideo, Mr. Derek W. Bowett, Q.C., emeritus Whewell Professor of International Law, University of Cambridge, Mr. Alain Pellet, Professor of Law, University of Paris X-Nanterre and Institute of Political Studies, Paris, Ms Susan Kenny, of the Australian Bar, as Counsel; Mr. Peter Shannon, Deputy Legal Adviser, Australian Department of Foreign Affairs and Trade, Mr. Paul Porteous, First Secretary, Australian Embassy in the Netherlands, as Advisers, composed as above, after deliberation, delivers the following Judgment: 1. On 19 May 1989, the Government of the Republic of Nauni (hereinafter called "Nauni") filed in the Registry of the Court an Application instituting proceedings against the Commonwealth of Australia (hereinafter called "Australia") in respect of a "dispute... over the rehabilitation of certain phosphate lands [in Nauru] worked out before Naunian independence". To found the jurisdiction of the Court the Application relies on the declarations made by the two States accepting the jurisdiction of the Court, as provided for in Article 36, paragraph 2, of the Statute of the Court. 2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was communicated forthwith by the Registrar to the Government of Australia; in accordance with paragraph 3 of that Article, al1 other States entitled to appear before the Court were notified of the Application. 3. Time-limits for the filing of the Memorial of Nauni and the Counter- Memorial of Australia were fixed by an Order of 18 July The Memorial was filed on 20 April 1990, within the time-limit fixed for this purpose. By a letter dated 19 September 1990, the Agent of Australia informed the Registrar that, after due consideration of the Memorial of Nauru, his Government had come to the conclusion that the Court had no jurisdiction in the case and that the Application was not admissible; he consequently informed the Registrar that Australia would raise preliminary objections in accordance with the provi-

11 sions of Article 79 of the Rules of Court. On 16 January 1991, within the timelimit fixed for the filing of the Counter-Memorial, the Government of Australia filed Preliminary Objections submitting that the Application was inadmissible and that the Court lacked jurisdiction to hear the claims made therein. Accordingly, by an Order dated 8 February 1991, the Court, recording that by virtue of the provisions of Article 79, paragraph 3, of the Rules of Court, the proceedings on the merits were suspended, fixed a time-limit for the presentation by the Government of Nauru of a Written Statement of its Observations and Submissions on the Preliminary Objections. That statement was filed on 17 July 1991, within the prescribed time-limit, and the case became ready for hearing in respect of the preliminary objections. 4. On 11 to 19, and 21 and 22 November 1991, public hearings were held in the course of which the Court heard the oral arguments and replies of the following : For Australia: Mr. Gavan Griffith, Q.C., Mr. Eduardo Jiménez de Aréchaga, Mr. Derek W. Bowett, Q.C., Mr. Henry Burmester, Mr. Alain Pellet. For Nauru: Mr. V. S. Mani, H.E. Mr. Hammer DeRoburt, G.C.M.G., O.B.E., M.P., Mr. Leo D. Keke, Mr. Barry Connell, Mr. Ian Brownlie, Q.C., Mr. James Crawford. During the hearings, questions were put by Members of the Court to both Parties, and replies were given either orally or in writing. 5. In the course of the written proceedings, the following submissions were presented by the Parties : On behalfof the Govemment of Nauru, in the Memorial: "On the basis of the evidence and legal argument presented in this Memorial, the Republic of Nauru Requests the Court to adjudge and declare that the Respondent State bears responsibility for breaches of the following legal obligations : First: the obligations set forth in Article 76 of the United Nations Charter and Articles 3 and 5 of the Trusteeship Agreement for Nauru of 1 November Second: the international standards generally recognized as applicable in the implementation of the principle of self-determination. Third: the obligation to respect the right of the Nauruan people to permanent sovereignty over their natural wealth and resources.

13 Fourth: the obligation of general international law not to exercise powers of administration in such a way as to produce a denial of justice lato sensu. Fgth: the obligation of general international law not to exercise powers of administration in such a way as to constitute an abuse of rights. Sixth: the principle of general international law that a State which is responsible for the administration of territory is under an obligation not to bring about changes in the condition of the territory which will cause irreparable damage to, or substantially prejudice, the existing or contingent legal interest of another State in respect of that territory. Requests the Court to adjudge and declare further that the Republic of Nauru has a legal entitlement to the Australian allocation of the overseas assets of the British Phosvhate Commissioners which were marshalled and disposed of in accordance with the trilateral Agreement concluded on 9 February Requests the Court to adjudge and declare that the Respondent State is under a duty to make appropriate reparation in respect of the loss caused to the Republic of Nauru as a result of the breaches of its legal obligations detailed above and its failure to recognize the interest of Nauru in the overseas assets of the British Phosphate Commissioners." On behalfof the Govemment of Australia, in the Preliminary Objections : "On the basis of the facts and law presented in these Preliminary Objections, the Government of Australia requests the Court to adjudge and declare that the Application by Nauru is inadmissible and that the Court lacks jurisdiction to hear the claims made by Nauru for al1 or any of the reasons set out in these Preliminary Objections." On behalfof the Govemment of Nauru, in the Written Statement of its Observations and Submissions on the Preliminary Objections : "In consideration of the foregoing the Government of Nauru requests the Court : To reject the preliminary objections of Australia, and To adjudge and declare: (a) that the Court has jurisdiction in respect of the claim presented in the Memorialof Nauru, and (b) that the claim is admissible." 6. In the course of the oral proceedings, the following submissions were presented by the Parties : On behalfof the Govemment ofaustralia, at the hearing of 21 November 1991 : "On the basis of the facts and law set out in its Preliminary Objections and its oral pleadings, and for al1 or any of the grounds and reasons set out

15 therein, the Government of Australia requests the Court to adjudge and declare that the claims by Nauru against Australia set out in their Application and Memorial are inadmissible and that the Court lacks jurisdiction to hear the claims." On behalfof the Government of Nauru, at the hearing of 22 November 1991 : "In consideration of its written and oral pleadings the Government of the Republic of Nauru requests the Court: To reject the preliminary objections raised by Australia, and To adjudge and declare: (a) that the Court has jurisdiction in respect of the claims presented in the Memorial of Nauru, and (b) that the claims are admissible. In the alternative, the Government of the Republic of Nauru requests the Court to declare that some or al1 of the Australian preliminary objections do Sot possess, in the circumstances of the case, an exclusively preliminary character, and in consequence, to join some or al1 of these objections tokhe merits." / 7. The Court will first consider those of Australia's objections which concern the circumstances in which the dispute relating to rehabilitation of the phosphate lands worked out prior to 1 July 1967 arose between Nauru and Australia. It will then turn to the objection based on the fact.- that New Zealand and the United Kingdom are not parties to the proceedings. Lastly, it will rule on the objections to Nauru's submissions relating to the overseas assets of the British Phosphate Commissioners. 8. The Court will begin by considering the question of its jurisdiction. In its Application, Nauru bases jurisdiction on the declarations whereby Australia and Nauru have accepted the jurisdiction of the Court under Article 36, paragraph 2, of the Statute. Those declarations were deposited with the Secretary-General of the United Nations on 17 March 1975 in the case of Australia and on 29 January 1988 in the case of Nauru. The declaration of Nauru stipulates that Nauru's acceptance of the Court's jurisdiction does not extend to "any dispute with respect to which there exists a dispute settlement mechanism under an agreement between the Republic of Nauru and another State". The declaration of Australia, for its part, specifies that it "does not apply to any dispute in regard to which the parties thereto have agreed or shall agree to have recourse to some other method of peaceful settlement". 9. Australia contends that as a result of the latter reservation the Court

17 lacks jurisdiction to deal with Nauru's Application. It recalls in that respect that Nauru, having been previously administered under a League of Nations Mandate, was placed under the Trusteeship System provided for in Chapter XII of the United Nations Charter by a Trusteeship Agreement approved by the General Assembly on 1 November That Agreement provided that the administration of Nauru was to be exercised by an Administering Authority made up of the Governments of Australia, New Zealand and the United Kingdom. Australia argues that any dispute which arose in the course of the Trusteeship between "the Administering Authority and the indigenous inhabitants" fell within the exclusive jurisdiction of the United Nations Trusteeship Council and General Assembly. Those organs, kept informed about Nauruan affairs by the Visiting Missions appointed by the Trusteeship Council, by petitions from the inhabitants, and by the reports of the Administering Authority, could make recommendations with respect to such disputes, not only to that Authority, but also to the representatives of the Nauruan people; they could also prompt negotiations with a view to settlement of such disputes. But in any event, according to Australia, any dispute ofthat type should be regarded as having been settled by the very fact of the termination of the Trusteeship, provided that that termination was unconditional. 10. In the present case, Australia emphasizes that the Nauru Local Government Council - an organ, created in 195 1, representing the Nauruan community and which, from 1963 onwards, had been, in many respects, responsible for local administrative tasks - raised with the United Nations the question of rehabilitation of the worked-out phosphate lands from 1965 onwards. That question was discussed in subsequent years, both within the United Nations and in direct contacts. At the end of those discussions, an Agreement relating to the Nauru Island Phosphate Industry was concluded on 14 November 1967 between the Nauru Local Government Council, on the one hand, and Australia, New Zealand and the United Kingdom, on the other, the effect of which, in Australia's submission, was that Nauru waived its claims to rehabilitation of the phosphate lands. Australia maintains, moreover, that on 19 December 1967, the United Nations General Assembly terminated the Trusteeship without making any reservation relating to the administration of the Territory. In those circumstances, Australia contends that, with respect to the dispute presented in Nauru's Application, Australia and Nauru had agreed "to have recourse to some other method of peaceful settlement" within the meaning of the reservation in Australia's declaration, and that consequently the Court lacks jurisdiction to deal with that dispute. 11. The Court does not consider it necessary to enter at this point into the details of the arguments thus advanced. Declarations made pursuant to Article 36, paragraph 2, of the Statute of the Court can only relate to disputes between States. The declaration of Australia only covers that type of dispute; it is made expressly "in relation to any other State accepting the same obligation...". In these circumstances, the question that arises in this case is whether Australia and the Republic of Nauru did or

19 did not, after 31 January 1968, when Nauru acceded to independence, conclude an agreement whereby the two States undertook to settle their dispute relating to rehabilitation of the phosphate lands by resorting to an agreed procedure other than recourse to the Court. No such agreement has been pleaded or shown to exist. That question has therefore to be answered in the negative. The Court thus considers that the objection raised by Australia on the basis of the above-mentioned reservation must be rejected. 12. Australia's second objection is that the Nauruan authorities, even before acceding to independence, waived al1 claims relating to rehabilitation of the phosphate lands. This objection contains two branches. In the first place, the waiver, it is said, was the implicit but necessary result of the above-mentioned Agreement of 14 November It is also said to have resulted from the statements made in the United Nations in the autumn of 1967 by the Nauruan Head Chief on the occasion of the termination of the Trusteeship. In the view of Australia, Nauru may not go back on that twofold waiver and its claim should accordingly be rejected as inadmissible. 13. The Court does not deem it necessary to enter into the various questions of law that are raised by the foregoing argument and, in particular, to consider whether any waiver by the Nauruan authorities prior to accession to independence is opposable to the Republic of Nauru. It will suffice to note that in fact those authorities did not at any time effect a clear and unequivocal waiver of their claims, whether one takes into consideration the negotiations which led to the Agreement of 14 November 1967, the Agreement itself, or the discussions at the United Nations. 14. The Parties are at one in recognizing that the Agreement of 14 November 1967 laid down the conditions under which the property in the capital assets of the phosphate industry on Nauru was to pass to the local authorities and the ways in which the phosphate would, in future, be worked and sold. They also recognize that that Agreement did not contain any express provision relating to rehabilitation of the phosphate lands previously worked out. However, the Parties disagree as to the significance of that silence. Australia maintains that "the Agreement did represent a comprehensive settlement of al1 claims by Nauru in relation to the phosphate industry", including rehabilitation of the lands, and that the Agreement was accordingly tantamount to a waiver by Nauru of its previous claims in that regard. Nauru, on the contrary, contends that the absence of any reference to that matter in the Agreement cannot be interpreted as implying a waiver. 15. The Court notes that during the discussions with the Administering Authority the delegation of the Nauru Local Government Council maintained, as early as June 1965, that "there was a responsibility on the Part-

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